Adidas Herbalife Complaint

Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 1 of 78
Page ID#: 1
OR~~INAL
Stephen M. Feldman, OSB No. 932674 SFeldman@perkinscoie.com PERKINS COlE LLP 1120 N.W. Couch Street, Tenth Floor Portland, OR 97209-4128 Telephone: 503.727.2000 Facsimile: 503.727.2222 Attorneys for Plaintiffs Daniel H. Marti; dmarti@kilpatrickstockton.com Patrick Eagan; peagan@kilpatrickstockton.com Kll..PATRICK STOCKTON LLP 607 14th Street, N.W., Suite 900 Washington, D.C. 20005 Telephone: 202.508.5800 Facsimile: 202.585.0033 William H. Brewster; bbrewster@kilpatrickstockton.com R. Charles Henn Jr.; chenn@kilpatrickstockton.com KILPATRICK STOCKTON LLP 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309 Telephone: 404.815.6500 Facsimile: 404.815.6555 Of Counsel for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF OREGON ADIDAS AMERICA, INC. and ADIDASAG, Plaintiffs,
v.
CV'09 "N6. 61 ..... MO

COMPLAINT (Trademark Infringement, Unfair Competition, Trademark Dilution, Deceptive Trade Practices, and Breach of Contract)
HERBALIFE INTERNATIONAL, INC., Defendant.
DEMANDFORJURYTmAL
1-
COMPLAINT
21184-0076/LEGAL16371859.1
Perkins Coie LLP 1120 NW. Couch Street, Tenth Floor Portland, OR 972094128 Phone: 503.727.2000 Fax: 503.727.2222
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Plaintiffs adidas America, Inc. and adidas AG (collectively, "adidas" or "Plaintiffs") state
the following for their complaint against Herbalife International, Inc. ("Herbalife" or
"Defendant").
I. l.
INTRODUCTION
This is an action at law and in equity for breach of contract, trademark
infringement and dilution, injury to business reputation, unfair competition, and deceptive trade
practices, arising under the Trademark Act of 1946,15 U.S. C. $$ 1051, et. seq. ("Lanham Act"); the antidilution laws of several states, including the Oregon antidilution statute, O.R.S.
$ 647.107; the fair business practices and unfair and deceptive trade practices acts of several states; and the common law.
2.
equipment:
adidas is the owner of the famous and distinctive Trefoil Mark, depicted below,
which is and has been used for a variety of goods, including sports apparel, accessories and
T
3.
rl-,--fr-
\v7
Defendant is using, and seeking to broadly register, the Tri-Leaf Mark, depicted
below, in connection with sports apparel, accessories and equipment:
4.
Defendant is doing so despite having entered into a contract with adidas on July
10, 1998, in which Defendant agreed that
"it will not use and register its TRI-LEAF Mark on
2-
COMPLAINT
E59.
Perkins Coie
llp
2l 184-0076/LEGALl63?l
I120 N.W. Couch Street, Tenth Floor Portland, OR 97209-4128 Phone: 503.727.2000
Fax
503.727.2222
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footwear, sports apparel, sports accessories or equipment," and in which Defendant further
agreed "to avoid any activity which might be likely to lead to confusion" with adidas.
Defendant's merchandise and sports sponsorships under the Tri-Leaf mark are likely to cause
confusion and to deceive consumers and the public regarding its source or affiliation, and Defendant's merchandise and activities dilute and tarnish the distinctive quality of adidas's
famous Trefoil Mark. Defendant's broad trademark filing program consists of trademark applications that include, or otherwise fail to expressly exclude, the goods prohibited by the contractual agreement between the parties.
II. 5.
JURISDICTION AND VENUE
This Court has subject matter jurisdiction under section 39 of the Lanham Act,
15 U.S.C. $ 1121, and under 28 U.S.C. $$ 1331 and 1338. This Court has subject matter
jurisdiction over adidas's related state and common-law claims pursuant to 28 U.S.C. $$ 1338
and 1361.
6.
This Court has personal jurisdiction over Defendant because, on information and
belief, Defendant has distributed or sold infringing merchandise within this State, has engaged in
acts or omissions
within this State causing injury, has engaged in acts or omissions outside of
this State causing injury within this State, has manufactured or distributed products used or
consumed within this State in the ordinary course of trade, or has otherwise made or established contacts with this State sufficient to permit the exercise of personal jurisdiction.
1.
This District is a proper venue pursuant to 28 U.S.C. $ 1391(b)(2) because a
substantial part of the events or omissions giving rise to adidas's claims occurred in this District.
III. 8.
THE PARTIES
Plaintiff adidas AG is a joint stock company organized and existing under the
laws of the Federal Republic of Germany, having its office and principal place of business at Postfach I 120, D-9 1 072 Heruogenaurach, Federal Republic of Germany. adidas AG was
3.
COMPLAINT
I
Perkins Coie r,lp

I120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503,7272000
2r t84-001 6|LECALI 637 I 859.
Fax: 503.127.2222
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formerly known under the name of "adidas-Salomon AG," the party named in the Agreement (as
defined below).
9.
Plaintiff adidas America, Inc. is a corporation organized and existing under the
laws of the State of Delaware, having its principal place of business at 5055 N. Greeley Avenue, Portland, Oregon 97217. adidas America, Inc., is wholly-owned by adidas AG and its affiliates,
and within this country adidas America, Inc. is a licensed distributor of ADIDAS-brand
merchandise, including goods bearing the distinctive Trefoil Mark.
10.
On information and belief, Defendant Herbalife International, Inc. is a corporation
organized and existing under the laws of the state of Nevada with a principal place of business at
1800 Century Park East, Los Angeles, California 90067.
ry.
1
FACTS COMMON TO ALL CLAIMS FOR RELIBF
1.
adidas is currently, and for years has been, one of the world's leading
manufacturers of athletic footwear, apparel, and sporting equipment. More than thirty-five years
ago, adidas first placed what
it refers to as the "Trefoil" symbol on its athletic shoes and apparel,
among other goods. The Trefoil symbol first appeared on adidas products at least as early as
1972. The symbol consists of three leaves, intersected by three stripes. A representative image of the registered Trefoil
symbol
is depicted below:
12.
Since its introduction, the Trefoil Mark quickly came to signify the quality and
reputation of adidas sportswear. Pages from adidas catalogs featuring sportswear bearing the
Trefoil Mark are attached
as
Exhibit
1.
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COMPLAINT
I
Perkins Coie
llp
1120 N.W. Couch Street, Tenth Floor
21184-007 6lt_EGALl 637 l 859.
Portland, OR 97209-412E Phone: 503,7212000
Fax
503.727.2222
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13.
as depicted
adidas is the owner of a federal trademark registration, Reg.No. 973,161, issued
by the United States Patent and Trademark Office on November 20,1973,for the Trefoil Mark, below, for "tote bags," "specific purposes athletic shoes," and "general purposes
sports shoes, sports wear, namely, suits, shorts, pants, tights, shirts, jerseys, socks and gloves."
-lVF
Affidavits have been filed pursuant to Sections 8 and 15 of the Lanham Act, 15 U.S.C. $$ 1058
and 1065, and this registration is incontestable. A copy of the Certificate of Registration for this mark is attached as Exhibit 2.
14.
as depicted
adidas is the owner of a federal trademark registration, Reg. No. 1,310,140, issued
by the United States Patent and Trademark Office on December 18, 1984, for the Trefoil Mark, below, for "sportswear, namely, suits, shorts, pants, tights, shirts, jerseys, socks,
gloves, jackets, coats, swimwear, sweaters, cps, pullovers, warm-up suits, rain suits, ski suits,
jump suits, boots, shoes, slippers, " and "shoelaces."
\lt
EYF
Affidavits have been filed pursuant to Sections 8 and 15 of the Lanham Act, 15 U.S.C. $$ 1058
and 1065, and this registration is incontestable. A copy of the Certificate of Registration for this mark is attached as Exhibit 3.
52
COMPLAINT
637 I 859.
Perkins Coie lr,p

t 120
N.W, Couch Street, Tenth Floor

Portland, OR 97209-4128 Phone: 503.727,2W0
II
844076/LECALl
Fax: 503,727.2222
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15.
adidas is the owner of a federal trademark registration, Reg. No. 3,104,117, issued
as
by the United States Patent and Trademark Office on June 13,20f,6, for the Trefoil Mark,
depicted below, for, inter alia,"leather and imitations of leather, and goods made from these materials in the nature of bags for general and sport use," "traveling bags for general and sport use," "sports and leisure we:u, namely suits, shorts, pants, sweatpants, skirts, shorts, dresses, blouses, shirts, T-shirts, sleeveless tops, polo shirts, vests, jerseys, sweaters, sweatshirts,
pullovers, coats, jackets, track suits, training suits, warm-up suits, swimwear, underwear, socks,
gloves, scarves, wristbands and belts; headgear, namely caps, hats, visors, headbands; athletic
footwear and leisure foot wear, namely boots, sandals, specific purpose athletic shoes and
general purpose sports shoes."
A copy of the Certificate of Registration for this mark is attached
-YF
as
Exhibit 4.
16.
adidas is also the owner of an International Trademark Registration, Reg.
No. 836,756, dated June 25, 200'4 and extending to the United States by way of designation
under the Madrid Agreement and Protocol, for the Trefoil Mark, covering, inter alia, "Clothing"
in International Class 25 and "gymnastic and sporting articles" in International Class 28. A copy
of the Certificate of Registration for this mark is attached as Exhibit 5.
17.
adidas is a world-famous brand in the apparel, sports equipment, and footwear
industries. For six decades, adidas has produced high-quality footwear, as well as (for almost as long) high-quality sports equipment and apparel, under a distinctive umbrella of adidas marks. As a result of this long recognition as a market leader, and consistent efforts to publicize adidas
6-
COMPLAINT
859. I
Perkins Coie
llp

Portland, OR 97 209-4128 Phone: 503.721.2000
2l I 84-0076/DGALl637l
Fax: 503,121,2222
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and its marks through sponsorships, endorsements, and the like, adidas's marks have become
among the most recognizable brands in the world, enjoying extraordinary goodwill.
18.
adidas's Trefoil Mark is a well-known and famous symbol of adidas's market
leadership in the areas of athletic footwear, sportswear, casual wear, and sport equipment. Since the Trefoil Mark first appeared on adidas's footwear, sportswear, and sports equipment in the early
1970s, the use and popularity of the
Trefoil Mark has continued to grow. The Trefoil Mark is now
the primary symbol of the adidas Originals line, an iconic sportswear and casual wear line.
19. adidas has used the Trefoil Mark in connection with numerous sponsorships of sports
tournaments, events and organizations, as well as professional athletes and collegiate sports
teams, including the Olympics, the World Cup, and the National Basketball Association. The
Trefoil Mark has also been the subject of successful marketing campaigns featuring, for
example, internationally-renowned professional athletes and musicians, such as David Beckham
and Robbie
Williams. The Trefoil Mark is also often featured by well-publicized celebrity and
athlete fashion choices by, for example, Madonna,
Lil' Kim, Geri Halliwell,
Missy Elliot, Dido,
Anna Kournikova, Lindsey Lohan, Gwyneth Paltrow, Craig David, Christina Aguilera, the Bee
Gees, Korn, as well as by actors in popular films, such as The Royal Tenenbaums (Ben Stiller),
The Honeymooners (Cedric the Entertainer), Primary Colors (John Travolta), Dude Where's My Car (Ashton Kutcher), and Blades of Glory (Will Femell). Sample images featuring prominent
athletes, musicians, and actors wearing clothing featuring the Trefoil Mark are attached as
Exhibit 6.
Such successful marketing campaigns, sponsorships, celebrity endorsements, and
otherwise prominent and extensive use of the Trefoil Mark, has lead to widespread recognition
of the Trefoil Mark as a leading and iconic sports and lifestyle brand.
20.
adidas has extensively and continuously used and promoted the Trefoil Mark in
connection with athletic footwear, sportswear, casual wear, and sports equipment. In recent
years, annual sales of products bearing the Trefoil Mark have totaled in the hundreds of millions
72
COMPLAINT
I 859.
Perkins Coie
llp
1120 N.W. Couch Street, Tenth Floor I
84-0076/ItcALl637
Portland, OR 97 209-4128 Phone: 503.727.2000
Fax: 503.727.2222
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of dollars globally, including sales within the United States. The Trefoil Mark has achieved international fame and tremendous public recognition.
21.
Since introducing its Trefoil Mark, adidas has spent millions of dollars promoting
the mark and products bearing the mark. As a result of adidas's continuous and exclusive use of
the Trefoil Mark in connection with its products, the mark enjoys wide public acceptance and
association with adidas, and has come to be recognized widely and favorably by the public as an
indicator of the origin of adidas's goods. As a result, adidas has built up and now owns valuable
goodwill that is symbolized by the Trefoil Mark.
V. 22.
DEFENDANT'S UNLAWFUL ACTIVITIES
Well after adidas's first use of its Trefoil Mark, Defendant adopted and began
using a three-leaf logo design, a copy of which is reproduced below (hereinafter, the
"Tri-lraf
Mark"), in connection with nutritional supplements and other health-related products.
23.
In the mid-1990s, Defendant sought to register the Tri-Leaf Mark in a number of
jurisdictions around the world. In part because of the similarities between the Tri-Leaf Mark and
the Trefoil Mark, adidas commenced trademark opposition proceedings against Defendant's applications to register the Tri-Leaf Mark.
24.
On July 10, 1998, the parties entered into a binding agreement (the "Agreement")
in which, in exchange for adidas's withdrawal of its then-pending opposition proceedings and
agreement not to object to any then-existing registrations, Defendant agreed, among other points,
as
follows:
5. 8COMPLAINT
I
HERBALIFE agrees that it will not use and register its TRI-LEAF Mark on footwear, sports apparel, sports accessories or equipment.
Perkins Coie
llp
Portland, OR 97209-4128
21t84-007 6|LEGALI 637 1 859.
Phone: 503.727.2W
Fax: 503.727.2222
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6. 7.
HERBALIFE asrees that it will use its TRI-LEAF Mark in combination uni in close proximity with the word "HERBALIFE." IIERBALIFE AND ADIDAS agree to avoid any activity which might be likely to lead to confusion between their respective marks. Should any instance of actual confusion nevertheless occur, the
parties agree to undertake such steps as may be mutually determined to be necessary and reasonable to prevent recurrence of confusion.
A true and correct copy of the Agreement is attached
as
ExhibitT.
25.
Subsequent to entering into the Agreement, Defendant expanded its use of the
Tri-Leaf Mark in connection with the sponsorship of sports teams and individual athletes, and
has caused and is causing the
Tri-Leaf Mark to be used directly on such items as sports apparel,
sports accessories and./or equipment.
26.
As part of this expansion of use of the Tri-Leaf Mark in connection with sports,
on or about August I8,20OJ, Defendant registered the domain name <herbalifesports.com>, and
began actively promoting the Tri-Leaf Mark in connection with a wide range of sports and
athletic activities, including by way of featuring the Tri-Leaf Mark on a wide range of sports
apparel, sports accessories and/or equipment. True and correct copies ofscreen shots taken from website pages associated with the <herbalifesports.com> domain name are reproduced below:
t.
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Yd LiD6!F t
Atffloloc
Tooma
olNtz D|m Kl
lrLlh|.n
[vrnl
Phek|s Vldoor
Put Your Goals in Motion

OP,,,!a r. cl i!!41s1 I
14 u /! r !!! frau rq fti,iri \y gE sr Oa

O
Codd You. Xcrbdde Dd.bdo.

"A healthy, active lifertyle rtanr with balanccd nutntlon "
,Qi: .. I
Sponsorod Evsnt6
eo
"J
,ff:#"
)
92
COMPLAINT
Perkins Coie
llp
II
84-0076/LEGALl 637 1 859. I
I120 N.W. Couch Street, Tenth Floor Portland, OR 9'1209-4128 Phone: 503.727,2W0
Fax: 503,727.2222
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Sporta Sponsorships
A!{otc l.s3
Ewnta
Phoios
HERBALIFE
Vidst
Put Your Goals in Motion
OPover sYd! rurtu O lqLitalLYour Eie, o i
O':fuq!d!!r!a0udl Opjqj-l$qq4loffi O lElelte arcn-nr cdd od.Ua

Y@r
flelbdtr
"A h.althy, active
lI:"_qi."j".1T'9"
Hdbalito Tams
2l
As a result of Defendant's sponsorship activities, the Tri-Leaf Mark can now be
found on a variety of sports apparel, sports accessories and/or equipment, including in

connection with the following sports and/or activities: soccer, basketball, cycling, volleyball, badminton, running (e.g., triathlons, decathlons, etc.), windsurfing, mountain biking, and
kickboxing.
28. 29.
Defendant does not always use the Tri-Leaf Mark in combination and in close
proximity with the term "HERBALIFE."

Defendant promotes its sports apparel, sports accessories and"/or equipment
featuring the Tri-Iraf Mark, and directs consumers to outlets where they can purchase such
items featuring the Tri-Leaf Mark. For example, the home page for Defendant's <herbalifesports.com> domain name prominently features a "Get Your Official LA Galaxy Jersey" link, directing consumers to sites where they can purchase sports apparel featuring the
Tri-Leaf Mark.
30.
Defendant also sponsors a number of the same sporting events and/or teams that
iue sponsored by adidas. For example, both Defendant and adidas sponsor the LA Galaxy professional soccer team. As a result, Defendant's trademarks (including the Tri-Leaf Mark)
10- COMPLAINT
21 184-00't 6il_EGAL1637 l 859.
Perkins Coie
llp

I
Portland. OR 97 209-4128 Phone: 503.727.2000
Fax: 503.727.2222
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appear on soccer jerseys that also feature adidas's trademarks (namely, the three-bars mark and
the ADIDAS word mark).
31.
merchandise.
adidas used the Trefoil Mark extensively and continuously before Defendant
began using the Tri-Leaf Mark in connection with sports sponsorships, apparel and sports related
32.
The sports apparel, sports accessories and/or equipment featuring the Tri-Leaf
Mark are similar to and compete with goods sold by adidas, and the parties' goods appear and
are sold through overlapping channels of trade.
33.
Defendant's use of a confusingly similar imitation of adidas's Trefoil Mark is

as to the
likely to cause confusion, or to cause mistake, or to deceive
affiliation, connection, or
association of Defendant with adidas, or as to the origin, sponsorship, or approval of Defendant's goods, services or commercial activities by adidas.
34.
use of the
The likelihood of confusion, mistake, and deception engendered by Defendant's

sponsorships, including apparel and
Tri-lraf Mark in connection with sports
merchandise associated with or relating to such sponsorships, is causing irreparable harm to the
goodwill symbolized by the Trefoil Mark and the reputation for quality that it embodies.
35.
On information and belief, Defendant has also filed broad trademark applications
in numerous jurisdictions around the world which consist of the Tri-Leaf Mark, and which
include, or otherwise fail to expressly exclude, the goods prohibited by the Agreement.
36.
These filings also manifest Defendant's intent to expand into, and encroach upon,
adidas's core apparel, footwear and sports-related business in manner which is likely to cause
confusion in the marketplace.
37.
For example, Defendant filed applications to register the Tri-Leaf Mark, as a
design element standing alone, in a number of countries, including in Australia (Application
No. 1094343) for such goods as "tote bags" in Internal Class 18, "clothing, headgear, footwear" in International Class 25, and "toys, stuffed toys, plastic figurines being toys, games and
I1- COMPLAINT
2
Perkins Coie
llp
II
844076/I-EGAL1637
I 859.
Phone: 503.7272OOO
Fax: 503.727.2222
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playthings" in International Class 28; in Honduras (Application No. 06003537) for such goods "shirts, hats, cycling jerseys, golf shirts" in International Class 25; and inZambia (Application
as
No. 05000760) for such goods as "clothing, headgear and footwear, particularly shirts, cloth caps
and cloth bags" in International Class 25.
38.
Defendant also f,rled applications to register the Tri-Leaf Mark as part of a
composite mark in a number of countries, including in or for the European Community
(Application No. 04927919) for such goods as "clothing, headwear, footwear" in International
Class 25 and "toys, stuffed toys, plastic figurines being toys, games and playthings"
in
International Class 28; and Norway (Application No. 2395771) for such goods as "bags" in International Class 18, "clothes, shoes, hats" in International Class 25, and "playthings, games, plastic hgurines" in International Class 28.
39. 40.
These and similar trademark filings constitute a material breach of the Agreement. adidas has demanded that Defendant honor the Agreement and cease all use of the
a manner that is
Tri-Leaf Mark in
likely to cause confusion. Despite adidas's informal efforts to
compel Defendant's compliance with the Agreement, those efforts have been unsuccessful.
4I.
On April 24,2009, counsel for adidas sent a formal demand letter to Herbalife
regarding Herbalife's trademark infringement and dilution, as well as Herbalife's breach of the
Agreement. A true and correct copy of this letter is attached as Exhibit 8.
42.
Defendant has failed to take any actions to date to cure its material breaches under
the Agreement, and otherwise avoid creating a likelihood of confusion in the marketplace by
way of its use of the confusingly similar Tri-Iraf Mark for related, if not identical, goods and
services.
FIRST CLAIM FOR RELIEF (Breach of Contract)
43. 44.
adidas repeats and incorporates by reference the allegations
in paragraphs I-42.
The Agreement between adidas and Defendant is a valid contract.
12. COMPLAINT
2
Perkins Coie
llp

I
I I 84-0076/[-ECAL1637
I 859.
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222
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45. 46.
the Agreement.
At all relevant times, adidas
has performed all of the material terms and
conditions required under the Agreement.

Defendant materially breached the Agreement when it used the Tri-Leaf Mark in
connection with sports apparel, sports accessories or equipment, as proscribed in Paragraph 5 of
47.
Defendant also materially breached the Agreement when it attempted to broadly
register the Tri-Leaf Mark in connection with apparel, footwear, sports equipment, and other
goods, as proscribed in Paragraph 5 of the Agreement.
48.
Defendant also materially breached the Agreement when it used the Tri-Leaf
as
Mark in a manner not in combination and in close proximity with the word "HERBALIFE,"
required in Paragraph 6 of the Agreement.
49.
Defendant also materially breached Paragraph 7 of the Agreement when
it
engaged in the complained of activity
including, the use of the Tri-Leaf Mark in connection

a sports-themed website
with apparel and sports equipment or accessories, Defendant's use of

featuring the
Tri-lraf Mark, and Defendant's sponsorships of sports teams, individual athletes
and sporting events
which is likely to lead to confusion between the parties' respective marks.
Defendant has refused to undertake any meaningful steps to prevent the existence or recurrence
of such likely and actual confusion.
50.
Defendant's breach of its contractual obligations is material and has damaged, and
continues to damage, adidas in an amount to be determined at
trial. Defendant's ongoing
breach
of the Agreement and use of the Tri-Ieaf Mark
confusingly similar imitation of adidas's
Trefoil Mark
is also inflicting irreparable harm on adidas.
SECOND CLAIM FOR RELIEF (Federal Trademark Infringement)
51.
adidas repeats and incorporates by reference the allegations in paragraphs 1-50.
13. COMPLAINT
2
Perkins Coie t t-p 1120 N.W. Couch Street, Tenth Floor

l I 84-0076/LEGALI 637 I 859. I
Phone: 503.727.20N
Fax: 503.727.2222
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52.
Defendant's use of a confusingly similar imitation of adidas's Trefoil Mark, in the
form of the Tri-Leaf Mark, is likely to cause confusion, or to cause mistake, or to deceive as to
the affiliation, connection, or association of Defendant with adidas, or as to the origin, sponsorship, or approval of Defendant's goods, services or commercial activities by adidas.
53.
Defendant has used marks confusingly similar to adidas's federally registered
marks in violation of 15 U.S.C. $ 1114, and Defendant's activities have caused and, unless enjoined by this Court, will continue to cause a likelihood of confusion and deception of
members of the trade and public and, additionally, injury to adidas's goodwill and reputation as
symbolized by the registered Trefoil Mark, for which adidas has no adequate remedy at law.
54.
Defendant's actions demonstrate an intentional, willful, and malicious intent to
trade on the goodwill associated with adidas's federally registered Trefoil Mark to adidas's great and irreparable injury.
55.
Defendant has caused and is likely to continue causing substantial injury to the
public and to adidas, and adidas is entitled to injunctive relief and to recover Defendant's profits,
actual damages, enhanced profits and damages, costs, and reasonable attorneys' fees under
15 U.S.C. $$ 1114,
1l16, and 1117.
THIRD CLAIM FOR RELIEF (Federal Unfair Competition)
56. 57 .
caused and is
Defendant's use of confusingly similar imitations of adidas's Trefoil Mark has
likely to cause confusion, or to cause mistake, or to deceive
as
to the affiliation,
connection, or association of Defendant with adidas, or as to the origin, sponsorship, or approval
of Defendant's goods, services or commercial activities by adidas.
58.
Defendant has made false representations, false descriptions, and false
designations of origin of its goods in violation of 15 U.S.C. $ 1 125(a), and Defendant's activities
have caused and, unless enjoined by this Court,
will continue to cause a likelihood of confusion

Perkins Coie
Portland. OR
97
14- COMPLAINT
2
llp
I120 N.W, Couch Street, Tenth Floor

209-4128
l 1 84-0076/LEGALI 637 I 859. I
Phone: 503.727.2OOO
Fax: 503.127.2222
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and deception of members of the trade and public and, additionally, injury to adidas's goodwill and reputation as symbolized by the Trefoil Mark, for which adidas has no adequate remedy at
law.
59.
adidas.
trade on the goodwill associated with adidas's Trefoil Mark to the great and irreparable injury
of
60.
Defendant's conduct has caused, and is likely to continue causing, substantial
injury to the public and to adidas, and adidas is entitled to injunctive relief and to recover
Defendant's profits, actual damages, enhanced profits and damages, costs, and reasonable
attorneys' fees pursuant to 15 U.S.C. gg 1125(a),1116, and 1117.
FOURTH CLAIM FOR RELIEF (Federal Trademark Dilution)
61. 62.
adidas repeats and incorporates by reference the allegations in paragraphs l-60. adidas has extensively and continuously promoted and used the federally
registered Trefoil Mark both in the United States and throughout the world, and the mark had thereby become a distinctive, famous, and well-known symbol of adidas's goods and
services well before Defendant began use of the
Tri-Iraf Mark in the manner complained of in
this Complaint.
63.
Defendant is making commercial use in commerce of marks that dilute and are
likely to dilute the distinctiveness of adidas's Trefoil Mark by eroding the public's exclusive
identification of this famous mark with adidas, tarnishing and degrading the positive associations
and prestigious connotations of the mark, and otherwise lessening the capacity of the mark to
identify and distinguish adidas's goods and services.
64.
trade on the goodwill associated with adidas's Trefoil Mark or to cause dilution of the Trefoil
Mark, to the great and ineparable injury of adidas.
15. COMPLAINT
2r t84-0u
6
Perkins Coie t t,p

I120 N.W. Couch Street, Tenth Floor Portland, OR 97209-4128 Phone: 503.727.2W0
fl_EcAL I 637 I 859. l
Fax: 503.127.2222
Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 16 of 78
Page ID#: 16
65.
Defendant has caused and will continue to cause irreparable injury to adidas's
goodwill and business reputation, and dilution of the distinctiveness and value of adidas's
famous and distinctive Trefoil Mark in violation of 15 U.S.C. $ 1125(c), and adidas therefore is
entitled to injunctive relief and to recover Defendant's profits, actual damages, enhanced profits
and damages, costs, and reasonable attorneys' fees pursuant
to
15 U.S.C. $$
I125(c), 1116, and
ttr7.
(State Trademark Dilution and
FIFTH CLAIM FOR RELIEF Injury to Business Reputation)
66. 67.
adidas repeats and incorporates by reference the allegations in paragraphs l-65. adidas has extensively and continuously promoted and used the registered Trefoil
Mark both in the United States and throughout the world, and the mark has thereby become a distinctive, famous, and well-known symbol of adidas's goods and services.
68.
Defendant's unauthorized use of adidas's registered Trefoil Mark dilutes and is
likely to dilute the distinctiveness of adidas's mark by eroding the public's exclusive
identification of this famous mark with adidas, tarnishing and degrading the positive associations
and prestigious connotations of the mark, and otherwise lessening the capacity of the mark to
identify and distinguish adidas's goods and services.
69.
trade on the goodwill associated with adidas's Trefoil Mark or to cause dilution of the Trefoil
Mark, to the great and ineparable injury of adidas.
70.
Defendant is causing and will continue to cause irreparable injury to adidas's
goodwill and business reputation, and dilution of the distinctiveness and value of adidas's
famous and distinctive Trefoil Mark in violation of the Oregon antidilution statute, O.R.S.
$ 647.107 (2007), as well as the antidilution laws of several states, including Alabama,
ALA.
CODE $ 8-12-17 (2003); Alaska, ALASKA STAT. $ 45.50.180 (Michie 2002); Arizona, ARZ. REV. STAT. ANN. $ 44-1448.01 (West 2003); Arkansas, ARK. CODE ANN. g 4-71-213
16- COMPLAINT
2
Perkins Coie
llp
II
84-0076/LEGALl
637 l 859.
I120 N.W. Couch Street. Tenth Floor Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222
Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 17 of 78
Page ID#: 17
(2002); California, CAL. BUS. & PROF. CODE g 14247 (2008); Connecticut, CONN. GEN. STAT. ANN. $ 35-lli(c) (West,2003); Delaware, DEL. CODE ANN. tit. 6, g 3313 (2N2); Florida, FLA. STAT. ANN. $ 495.151 (West 2O03); Georgia, GA. CODE ANN. g 10-l-451
(2003); Hawaii, HAW. REV. STAT. ANN. g 482-32 (Michie 2ffi3); Idaho, IDAHO CODE
$ 48-513
(Michie
2OO2);
Illinois, 165lLL. COMP. STAT. ANN.
1036165 (2003);
Iowa,IOWA
CODE ANN. $ 548.113 (West 2003); Indiana, IN. CODE 24-2-l-13.5 (West 2006); Kansas,
KAN. STAT. ANN. $ 81-214 (2N2): Louisiana, LA. REV. STAT. ANN. S5I:223.1(West
2003); Maine, ME. REV. STAT. ANN. tit. 10, g 1530 (West 2003); Massachusetts, MASS.
GEN. LAWS. ANN. ch. 110H, $ 13 (West 2006); Minnesota, MINN. STAT. ANN. $ 333.285
(West 2OO3); Mississippi, MISS. CODE. ANN. *15-25-25 (2003);Missouri, MO. ANN. STAT.
$ 417.061(1) (West 2OO2); Montana,
MONT. CODE ANN. $ 30-13-33a Qffi3); Nebraska, NEB.
REV. STAT. ANN. $ 87-140 (Michie 2OO2): Nevada, NV. REV. STAT. 600.435 (2007); New
Hampshire, N.H. REV. STAT. ANN. $ 350-4:12 (2003): New Jersey, N.J. STAT. ANN. 56:313.20 (West 2003): New Mexico, N.M. STAT.
ANN. $ 57-38-15 (Michie 2N2); New York,
N.Y. GEN. BUS. Law $ 360-l (2003); Pennsylvania,54 PA. CONS. STAT. ANN. E lI24 (West
1996); Rhode Island, R.I.
cEN. LAWS S 6-2-12 (1992); South Carolina, S.C. CODE ANN. ANN. E 47-25-513 (2003); Texas, TEX. BUS.
$ 39-15-1165 (2002); Tennessee, TENN. CODE
& COM. CODE ANN. $ 16.29 (Vernon 2003); Utah, UT. CODE ANN. $ 70-3a-403 (2W2);
washington, wASH. REV. CODE ANN. $ 19.77.160 (2003); Wesr Virginia, W. VA. CODE
ANN. 47-2-13 (Michie 2N3); andWyoming, WYO. STAT. ANN.
40-1-l15 (Michie 2002).
adidas therefore is entitled to injunctive relief, damages and costs, as well as, enhanced damages and reasonable attorneys' fees.
if appropriate,
SIXTH CLAIM FOR RELIEF (Unfair and Deceptive Trade Practices)

7r.
17- COMPLAINT
21 184-007
Perkins Coie lr,p

I120 N.W. Couch Street, Tenth Floor Portland, OR 97 209-4128 Phone: 503.727.20W
6il-EGALI 637 I 859. I
Fax: 503,727.2222
Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 18 of 78
Page ID#: 18
72.
Defendant's unauthorized use of the Tri-Leaf Mark as alleged herein constitutes
unfair and deceptive acts or practices in the course of a business, trade, or cofllmerce in violation of the unfair and deceptive trade practices statutes of several states, including Colorado, COLO. REV. STAT. ANN. $$ 6-1-101 to 6-1-115 (West 1996 and Supp. 1998); Delaware, DEL. CODE
ANN. tit. 6, $$ 2531 to 2536 (1993 & Supp. 1998); Georgia, GA. CODE ANN. $$ 10-1-370 to
I0-l-315 (199D; Hawaii, HAW. REV. STAT. $$ 48lA-1 to 481A-5 (1993); Illinois, Sl5 ILL.
COMP. STAT. ANN. 510/1 to 51017 (1993); Maine, ME. REV. STAT. ANN. tit. 10, $$ 1211 to
1216 (West 1996); Minnesota,
MINN STAT. ANN. $ 325D.43 to .48 (West 1995);Nebraska,
NEB. REV. STAT. $$ 87-301 to 87-306 (1995); New Mexico, N.M. STAT. ANN. $$ 57-12-1 to
57-12-22 (Michie 1995); New York, N.Y. cEN. BUS. Law $ 349 (McKinney 1988); Ohio,
OHIO REV. CODE ANN. $$ 4165.01 to 4165.04 (West 1995); and Oklahoma, OKLA. STAT.
ANN. tit. 78, $$ 5l to 55 (West 1995 & Supp. 1998).
73.
Defendant's unauthorized use of confusingly similar imitations of adidas's Trefoil
Mark has caused and is likely to continue to cause substantial injury to the public and to adidas,
and adidas is entitled to injunctive relief and to recover actual damages, costs and reasonable
attorneys' fees, as well as punitive damages.
SEVENTH CLAIM FOR RELIEF (Common Law Trademark Infringement and Unfair Competition)
74. 75.
Defendant's acts constitute common law trademark infringement and unfair
competition, and have created and will continue to create a likelihood of confusion to the
irreparable injury of adidas unless restrained by this Court. adidas has no adequate remedy at
law for this injury.
76.
On information and belief, Defendant acted with full knowledge of adidas's use
of, and statutory and common law rights to, the Trefoil Mark and without regard to the likelihood of confusion of the public created bv Defendant's activities.
18- COMPLAINT
21 184-007 6 I.E,GAL I 637 I 859.
Perkins Coie
llp
I120 N.W. Couch Street, Tenth Floor Portland, OR 97 209-4128

I
Phone: 503.727.2W
Fax: 503.727.2222
Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 19 of 78
Page ID#: 19
77.
adidas.
trade on the goodwill associated with adidas's Trefoil Mark to the great and ineparable injury of
78.
As a result of Defendant's acts, adidas has been damaged in an amount not as yet
determined or ascertainable. At a minimum, however, adidas is entitled to injunctive relief, an accounting of Defendant's profits, actual damages, punitive damages, and costs.
PRAYER FOR RELIEF

WHEREFORE, adidas prays that:
1.
Defendant and all of its agents, officers, employees, representatives, successors,
assigns, attorneys, and all other persons acting for, with, by, through, or under authority from
Defendant, or in concert or participation with Defendant, and each of them, be enjoined
preliminarily and permanently, from:
a.
using the Tri-Leaf Mark, or any other copy, reproduction, colorable
imitation, or simulation of adidas's Trefoil Mark on or in connection with footwear, sportswear,

casual wear, sports equipment and accessories;
b.
using the Tri-Leaf Mark, or any other copy, reproduction, colorable
imitation, or simulation of adidas's Trefoil Mark on or in connection with sporting and athletic
events, including sponsorship of individual athletes or teams;
c.
using any trademark, service mark, nzune, logo, design, or source
designation of any kind on or in connection with clothing, sports accessories or sports equipment that is likely to cause confusion, mistake, deception, or public misunderstanding that such goods
or services are produced or provided by adidas, uue sponsored or authorized by adidas, or are in
any way connected or related to adidas;
d.
using any trademark, service mark, name, logo, design, or source
designation of any kind on or in connection with footwear, sportswear, casual wear, sports
19- COMPLAINT
21
Perkins Coie t lp
184-0076/IEGALl637
l 859.1
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727,2222
Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 20 of 78
Page ID#: 20
equipment and accessories that dilutes or is likely to dilute the distinctiveness of the trademarks, service marks, names, or logos of adidas;
e.
passing off, palming off, or assisting in passing
off or palming off,
Defendant's goods or services as those of adidas, or otherwise continuing any and all acts of unfair competition as alleged in this Complaint; and
f.
attempting to register the
Tri-Iraf Mark, or any other copy, reproduction,
colorable imitation, or simulation of adidas's Trefoil Mark, based on a specification of goods or

services which includes, or otherwise fails to expressly exclude, the goods or services prohibited in
the Agreement.
2.
Defendant be ordered to abandon, withdraw, or cancel, as the case may be, any
and all trademark applications or registrations anywhere in the world that consist of the Tri-Leaf
Mark, and consists of clothing, sports accessories or sports equipment (or their equivalents),
excepting only such actual trademark registrations as may have existed in the name of Defendant
as
ofJuly 10, 1998;
3.
Defendant be ordered to recall all products bearing the Tri-Leaf Mark, or any
other confusingly similar mark, which have been shipped by Defendant or under its authority to any corporate customer, including, but not limited to, any wholesaler, distributor, retailer, consignor, or marketer, and also to deliver to each customer a copy of this Court's order as
relates to said injunctive relief against Defendant;
it
4.
Defendant be compelled to account to adidas for any and all profits derived by
Defendant from the manufacture, sale, licensing or distribution of infringing goods as described
in this Complaint;
5.
Complaint;
adidas be awarded all damages caused by the acts forming the basis of this
2o- cotvtpLAINT
2l 184-007 6 I LEGALI 637 I 859. I
Perkins Coie
llp
Portland, OR 97209-4128 Phone: 503.727.2W0
Fax: 503.727.2222
Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 21 of 78
Page ID#: 21
6.
Based on Defendant's knowing and intentional use of confusingly similar
imitations of adidas's Trefoil Mark, the damages award be trebled and the award of Defendant's profits be enhanced as provided by 15 U.S.C. g 1117(a);
7.
Defendant be required to pay to adidas the costs of and the reasonable attorneys'
fees incurred by adidas in this action pursuant
to
15 U.S.C.
$ 1117(a) and the state statutes cited
in this Complaint;
8. 9. 10.
Based on Defendant's
willful
and deliberate infringement and dilution of adidas's
Trefoil Mark, and to deter such conduct in the future, adidas be awarded punitive damages;
Defendant be required to pay prejudgment interest on all monetary awards; and
adidas have such other and further relief as the Court may deem just.
JURY TRIAL DEMAND

adidas respectfully demands a trial by
jury on all claims and issues so triable. PERKINS COIE

T,T,p
DATED:
June 12,2009
1120 N.W. Couch Street. Tenth Floor Portland, OR 97209-4128 Telephone: 503.727.2000 Facsimile: 503.727 .2222
Attorneys for Plaintiffs
21- COMPLAINT
2
Perkins Coie t lp
Portland, OR
l | 84-0076/I-EGALI 637 I 859. I
97
209-4128
Phone: 503.727.2N0
Fax: 503.727.2222
Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 22 of 78
Page ID#: 22
Daniel H. Marti Patrick Eagan KILPATRICK STOCKTON LLP 607 l4t'Street, N.W., Suite 900 Washington, D.C. 20005 Telephone: 202.508.5800 Fac simile : 202.585 .0033
William H. Brewster
R. Charles Henn Jr. KILPATRICK STOCKTON LLP 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309 Telephone: 404.8 15.6500 Facsimile: 404.8 15.6555
Of Counsel for Plaintiffs
22- COMPLAINT
2
PerkinsCoiettp
l I 84-0076/r..EGAL l 637 l 859. I
Portland, OR 97209-4L28 Phone: 503.727.2000
Fax: 503.127.2222
Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 23 of 78
Page ID#: 23
rlm ox
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i,88Tr85 ADI TREFOIL TEE
Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 24 of 78
Page ID#: 24
Firebird Track Top

one of the most iconic and best-selling track tops of all time. The classic Firebird rop features contrast 3-stripes along the sleeves, and a relaxed fit that appeals to the masses. This modern classic is available in a rainbow of colors-you can,t go wrong
hisrory: Track
with this best-selling style.
743967
black: white
E14046 white : light orange El46,|;9 violett:turquoise
El.t648
E14647
size: S-4XL
light scarlet: white indigo : white
price: 965.00 : s3250h fabrication: | 00% polyester shiny tricot.
Firebird Track Pant

the most iconic and best-selling track pants of all time. The classic Firebird Track Pant features contrast 3-Stripes along the legs, and a relaxed fit that appeals to the masses, This modern classic is available in a rainbow of colors-you can't go wrong with this best-selling style.
hiscory: One of
74396!
black: whhe
E14639 white : light onnge
El4U3 El4U2 El464l
violett:turquoise
light scarlet: wtrite indigo : white
(QJ
o6: ot\) =
lrm ox
prlce: $55.00 : s2750h size: S-4XL fabrication: 100% polyester shiny tricot.
(Jl
Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 25 of 78
Page ID#: 25
Trefoil Ringer
history: You can't go wrong with this classic ringer tee-and this vintage washed version has a luxurious soft feel for maximum comfort. The distressed screen orint is the perfect sign-off
E78105 wtrite: black E78102 violett:turquoise E78104 argemina blue : indigo

orice: $30.00: sl500h
size: S-4XL
fabrication: 100% cotton single jersey.
Piqu6 Polo
history: Originality comes in many colors. These timeless staples of classic adidas style hook up with any look. The basic polo is a favorite when it comes to clean and versatile wardrobe pieces, The 210 g cotton is stylish and comfortable, providingthe best of
both worlds.
E14633 black ; white : white-black E14629 light scarlet : white : whiteJight scarlet E14627 indigo : white : white-indito E14625 white : light orante : litht orante-white E14635 violec: turquoise : turquoise-violett
price: $40.00 : s2000h size: S-4XL fabrication: l0()% cotton piqu6.
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Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 26 of 78
Page ID#: 26
Hooded Flock Track Top

history: Originality comes in many colors, As an integral part of the adidas training collection, the classic Hooded Flock Track Top was originally released in the late 1970s This is a great trans-seasonal piece and a staple to any wardrobe.
608959
black: white : nirite

light scadct : ndrhc : wfiite
El45n
E11576 indigo : whitc : white E!4S7S white : light onrngr : light orange E14578 violett: turquoise : urrquoise
price: $65.00 : s3250h
size: S-4XL
fabricarion: 87% polyester: l3% cotton intedock
adi Board Short

history: These board shorts represent a popular piece ofsummer clothing, featuring a woven fabric construction, contrast 3-Stripes and logo embroidery. A tiecord on the waist allows a perfect fit.
El.{063
E14065
clan
black
El.t064
hngo
price: $40.00 : s2000h size: S-3XL fabrication: 100% polyester twill.
ox (of
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Super Track Top
history: In a shiny tricot fabric, the SuperTrack Top combines fashion and style with its clean and classic slim fit silhouette. A great addition to any outfit this season.
o6i .tr=
El4g8 black El,{(Xs white El.t043 turquoise

price: $65.00 : s3250h
size: S-3XL
fabricarion: 87% polyester: l3% cotton intedock
Case 3:09-cv-00661-MO
Document 1
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Page 27 of 78
Page ID#: 27
Sparse Neck Tee

With a comfortable and soft-hand slubbed jersey, this trendy V-neck shirt is a welcome addition to the range, The chest pocket on the front both looks smart and sets this piece apart from the rest.
history:
ETf852
En850
size: S-2XL
echo blue light orange
price: $35.00 : sl750h
Cargo Short
history: Cargo shorts always look good-and these woven twill versions are no exception. With a cool cut and style, these feature hook-and-loop closures on the pockets to make sure nothing falls out while you're out and about.
E78081
sand
E7q)80
black
price: $70.00 : s3500h size: S-2XL fabrication: 100% cotton twill.
Plaid Logo Tee

history; A classic tee gets the plaid treatment to complement the other pieces in the range this season. With a screen-printed application and classic cut, it's a great option for the summer.
E7783l
E78125
white
red
price:930.00: sl500h
size: S-2XL fabrication: 100% cotton single lersey.
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20
Case 3:09-cv-00661-MO
Document 1
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Page 28 of 78
Page ID#: 28
Firebird Track Top

history: This classic track top features contrast 3-Stripes along the sleeves and a Trefoil zipper pull. A largerTrefoil on the back completes this modern classic, available in a
rainbow of colors.
E16194 white: metallic silvcr E16492 matt yellow: u,rtrite E16199 black: white E16496 light aqua: udrite E16493 fairrvzy : white
price: $65.00 : s3250h
size: XS-XL
fabricarion: | 00% polyester shiny tricot.
Firebird Track Pant

history: The classic Firebird Track Pant features contrast 3-Stripes along the legs. A relaxed straight pant perfect for chilling or exercise, made from shiny polyester with a brushed soft inner, perfect forthat casual sporty look!
El6.186 white:
E E E
metallic sitver
16.18,+ matt yellow : white

1649
16,t88
El6,{85
size: XS-XL
black : white light aqua : white hirway: whhe
price: $55.00 : s2750h
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fabricarion: 100% polyester shiny tricot.
o6i
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Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 29 of 78
Page ID#: 29
Trefoil Hoody
hisrory: Originality comes in many colors. An extremely wearable item, this hoody is made of a soft and comfy fleece with a fun Trefoil print technique. Clean and sporty, it's the perfect garment for lounging this season. Available in an array of colors.
E16172 whitc:
metallic silvcr
ElU76
E16173
black: r'hitc light aqua: white
El617l
slze: XS-XL
hirway: wtrite
E16470 matt yellow: white

price: $55.00 : s2750h fabrication: 70% cotton : 30% potyester fleece.
TrefoilTee
history: Originality comes in many colors. The classic T-shirt design is finished with a bold print of the iconic Trefoil. Sporty, feminine and eye-catching with an updated, tailored fit.
E16437 white:
metallic silver
El611l
E16436 E16435
E
16434
black: white light aqua: white hirrvzy: white matt yellow : white
price:$25.00:sl250h
size: XS-XL
ttrJ O-6 {+
1'M o!x
o(tl
Case 3:09-cv-00661-MO
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Page ID#: 30
adi Firebird Tracksuit

hisrory: Kids Core Basics is a range ofdirect replicas ofour strong sporty adult pieces, executed in multiple colors. This kids' Firebird Tracksuit is presented here in a durable and comfortable French terry fabric that holds true to the original adult version, Comfort and style forthe little ones never looked so good!
E13849
light red
blue black
El385l
E13853
size: 6M-47
price: $55.00 : s2750h fabrication: 10096 cotton french terry.
adi Trefoil Tee

hisrory: Kids Core Basics is a range ofdirect replicas ofour strong sporty adult pieces, executed in multiple colors. This bold Trefoil Tee is constructed in a comfortable cotton jersey fabric-a definite winner for the wardrobe this year.
3904 3n)6 E | 3902

E
|
E|
black : metallic gold blue : light aqua light rcd : white
price: $20.00: sl000h
size:6M-47
fabricarion: 100% cotton single jersey.
Graphic Tee Sneaker

history: This Graphic Tee features a fresh main Sneaker take-down graphic on a single iersey construction-ideal for looking good this season.
E13993 E13992
size: 6M-47
sun black
price: $22.00 : sl l00h fabrication: 100% cotton single jersey.
ox (oJ o-i oo=

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t2
Case 3:09-cv-00661-MO
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Page ID#: 31
Firebird Track Top

history : One of our most iconic and best-selling trackuits of all time. Ayailable in six colors!
6l.ttl49 black: ice grcy :metallic silver
743967 black
:white
612148 mustang brown : slime 088153 fango : mono yellow
0886fi rubia grey : light scarlet 29859 dark navT :white price:$60.00:s3000h
size : S-4XL
fabrication : l0()% polyener shiny tricot.
Firebird Track Pant

history : One of our most iconic and best-selling trackuils of all time. Available in six colors!
611,137 black
:ice grey :metallic silver
7,1395! black : white
6l2ll8
mustang brown : slime
088450 fango ; mono yellow

088,151 rubia grey : light scarlet
307287 dark navy : white
orice:$50.00:s2500h
size : S-4XL
fabrication : 100% polyester shiny tricot
Superstar Track Top

Trackuit
hlstory : Ar:thentrc. Original Classic The Superstar is the backbone of Originals apparel Spun here in classic, athletic colors red :whrte
566,150 collegiate
570925 black : white 654075 dark navy : legacy
price:$60.00:s3000h
size : S-3XL
lrm ox (o5 o6; (c,

oA='
(rl
fabrication : 100% polyester shiny tricot.
Superstar Track Pant

history : Authentic. Original. Classic.The Superstar
Tnckuit
here in
is
the backbone of Originals apparel. Spun

athletic colors red : white
classic.
566,{,{2 collegiate
743512 black : whrte

65,1088
dark navT : legacy
orice:$50.00:s2500h
size : S-3XL
fabrication : 100% polyester shiny tricot.
Case 3:09-cv-00661-MO
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Page ID#: 32
Firebird Track Top

history : One of our most iconic and best-selling traclauits of all time.The Firebind has a relaxed frt that appeals to the nnsses.Arailable in six colors! See page four for additional colors.
088,153 fango :mono yello'rr 0886fi rubia grey : light scarlet
price:$60.00:s3000h
size : S-4XL
Firebird Track Pant

history : One of our most iconic and best-selling fackuits of all tirne.The Firebirrd has a relaxed fit that appeals to the nassesAvailable in six colors! See page four for additional colors.
088{50 fanSo : mono yello,v 088.t51 rubia grey: light scarlet
price:$50.00:s2500h
size : S-4XL
Trefoil PrintTee
history : The classicTrefoil tee has been updated wrth seasonal colors that hook back to some sweet.
seasonal footwear: 204242 neo whrte
20,1240 ligtrt scarlet
price:$25.00:sl250h
size : S-4XL
fabrication : 100% cotton enzyme-washed single jersey.
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Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 33 of 78
Page ID#: 33
Cargo Zip Hoody

history : This heathered fleece stnrp lp hoody comes fully equipped with cargo pockets, a stylish contran jersey liner and dravrrcords for an adjustable fit lfyou'w got the s^agge[ then carry it otr properly by looking the part this season!
209202 beige melange :shade purple 209203 urban melange : celadon grey : lava
price:$80.00:s4000h
size : S-4XL
fabrication : 70% cotton : 30% poVester brushed-back

enzyme-washed fleece.
Striped TrefoilTee
history : lf you're going to rock the House Party then
this classicTrefoilT-shirt is the perfect way to do it in style.Tradition meets raw elegance with this important piece of the collection.
209|t{ shade purple : vapour

209195 lava : celadon grey
price:$32.00:sl600h
size : S-4XL
fabrication : 100% cotton enzyme-washed single jersey
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Case 3:09-cv-00661-MO
Document 1
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Page 34 of 78
Page ID#: 34
Logo Firebird TrackTop

history : One of our most iconic and best-selling trackuits of all time.The Firebird has a relaxed fit and stylish good look, now updated with aTrefoil
logo on the back
027,156 celadon grey : calvi
607633 cargo : indigo 607659 black :metallic siNrer

027.157 black : shade purple
price:$60.00:s3000h
size : XS-XL fabrication : 100% polyester shiny tricot.
Firebird Track Pant

history : A relaxed straigfrt pant perfect for chilling or exercise, made from shiry polyener with a brushed soft-inner perfect for that casual sporty look!
607620 cargo : indigo 601627 black: metallic silver 027{52 celadon grey : calvi 027491 black : shade purple
orice:$50.00:S2500h
size : XS-XL
fabrication : 100% poly brushed-backtricot
Super GirlTrackTop
history :This classic silhouette has been a true authertic adidas piece, designed in a women's specific fit.
0271% ra/e red :whhe
627.f8,1 black
:white
price:$60.00:s3000h
size : XS-XL fabrication :80% nylon :20% polyenertricot.
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Super GirlTrack Pant

history : With authenticity and style in mind the Super Girl Pant is a classic sport-inspired piece to complement the Super Girl TrackTop
027181 ra\
red:white
:white
627,175 black
price :950.00 : s2500h
size:XS-XL
fabrication :80% nylon
:2ffi
potyestertricot
Case 3:09-cv-00661-MO
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Page ID#: 35
Firebreaker Jacket
classic FirebirdTrackTop, this garrnent uses contemponry fabric to tum an established classic into a modem masterpiece. lt has a relaxed frt, Trefoil zip-puller and tonal 3-Stripes along the sleeves. Made from double-knit polyester and a shiny woven
history : Inspired by the
oreday on the front this piece becomes a basic essential.

608{89 running white : metallic silrer 60,t99 indigo : metallic siver
608492 cargo : matwe grey
price :970.00 : s3500h

size : XS-XL
fabrication :55% cotton :45% potyester:
Super Girl Mesh Jacket

history : A new spin on one ofadidas' most recognized
styles--the Super GirlTrackTop. One side features contrast 3-Stripes along the sleeves.The other? ATrefoil graphic
in the center back ofthe track top.The mix of print techniques prwide a great ralue for this new basic essential. 607818 black : metallic silver :running white
price:$60.00:s3000h
size : XS-XL
fabrication : | 00% polyester tricot
CB Fleece Zip Hoody

history : A sporq/ but casual fleece zip hoody with a basic frt and plenty of style elements: contrasting 3^Stripes on the sleeves, contrast front chest panel and hood tiecords, flock print and embroidery
607895 running white : black :metallic silver 607863 indigo : mau\ : cargo
orice:$55.00:s2750h
size : XS-XL
hbrication :70% cotton :30% potpner:
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Trefoil Graphic Tee

history : A unique and stylish feminine cotton tee gets remixed with a long ft,tonal 3-Stripes and eye-catching Trefoils on the bottom front and back utilizing different print techniques. Fun and r,ersatile.
60775,1 running
white :black : light bone
607732 cargo : indigo
price : $30.00: sl500h size : XS-XL fabricatjon : 100% cotton single jersey
Case 3:09-cv-00661-MO
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Page ID#: 36
Baby Superstar Tracksuit

vrrce Superstar suit is a snappy style for the mini-hipster in your life. Comf, spor.ty and iconic adidas.
history : This
088672 mono pink : fresh pink : white 088671 rnauve
tint :white
088670 pool : white 088607 dark navy : white E19203 ra\ pink: metallic silrer E19202 black: metallic silver
price:$45.00:s3750h
size :6M-47
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Case 3:09-cv-00661-MO
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Page ID#: 37
Logo Firebird TrackTop

history : One of our most iconic and best-selling trackuits of all time.The Firebird has a relaxed frt and stylish good look, nor updated with aTrefoil
logo on the back
027,156 celadon grey : calvi
027457 black : shade purple
price:$60.00:s3000h
size : XS-XL fabrication : 100% poly brushed-back tricot.
Firebird Track Pant

history : One of our most iconic and best-selling tracksuits of all time.The Firebird has a rela:<ed frt and svlish good looks, 027{52 celadon grey : calvi 027,{5,1 black : shade purple
price:$50.@:S2500h
size : XS-XL fabrication : 100% poty brushed-back tricot.
Lady Lumberjack Coat

history : A feminine take on a classic male silhouette.
This satin plaid coat will keep looking hot.
209056 green grey : chalk 2 20905,f shade purple : chalk 2
pu
warm while you are
pricc
:$l
10.00: s5500h
slze :XS-2XL
fabrication : 100% polyester satin.
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Lady LumberjackVest
remb<es a classic nrale piece into a sexy and stylish feminine item. Funky plaid meets a fun satin fabric and faux-fur hood in this fun top--go and wear it in the parks or on the streets! 209060 gren grey 209057 shade purple : chalk 2
history : This LumberjackVest
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Page ID#: 38
United States Patent Office

PBINCIPAL REGISTER
Trademark
Ser. No. 422,163, filed Apr. 24, t972
973,161
Registered Nov. 2O' 1973
Adidas Sportschuhfabriken Adi Dassler Am Bahnhof

flerzogenaurach, near Nurnberg, Germany
firm)
KG
(German
For: TOTE BAGS, in CLASS 3 (INT. 1E).

CI-ASS 22 (rNT. c'L.25). For: GENERAL PURPOSE SPORT SHOES, SPORTS
For: SPECIFIC
PURPOSE ATIILETIC SHOES, in
WEAR-NAMELY, SUITS, SHORTS, PANTS' TIGHTS, SHIRTg JERSEYS, SOCKS, AND
GLOVES-in CLASS 39 (INT. C.L.25). Priority clairned under Sec. 44(d) on German applica' tion filed Nov. 10, 1971; Reg. No. E89,O76, dated Dec. 23,197t.
M. E. ABRAMSON, Supcrvisory Examiner
Exhibit 2
Page 1 of
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Page ID#: 39
Int. Cls.: 25 md,26

Prior IJ.S. Cls.: 39 and
40
TRADEMARK
Principal Register
Al-
Adidss Sportschuhfabrikeo
Adi
Dassler
Am
Rcp. of Gcrmany limitcd partnership)
KG
(Fod.
Firet tue Mar. 10, 1972; in cornneroe Scp. 1974.
Bahnhof, Hcrzogenaurach,
Gcrmaay D-8522
Fd.
Rep. of
Fon SHOELACBS, in CLASS 26 (U.S. Cl.4O). First

othcrs. Ser. No.
use
Nov.
l, 1979; in oolnmeroe Nov. l, 1979.
SPORTSWEAR-NAMELY, SUITS, sHoRTS, PANTS, TIGIITS, SHIRTS, JERSBYS, SOCKS, GLO\'ES, JACKETS, @ATS, WARI{-UP SUITS, RAIN SUITS, SKI SUITS, JT'MP SUITS, BC)OTS, SHOES, SLIPPERS, iN
CLASS 25 (U.S. Cl. 3e).
For:
Owner of U.S. Rcg. Noo. 973,161, 1,162,82t and
SWIMWEA& SWEA,TERS, CAPS, PULIJOVBRS,
M,Els,filed bec. 21,1982.
DEBORAH S. COHN, nxanining Attorney
Exhibit 3
Page 1 of
Case 3:09-cv-00661-MO
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Page 40 of 78
Page ID#: 40
Int. Cls.: 9,141 18 and 25

Prior LJ.S. Cls.: tr2r3r2lr22r23r26r27 r?8r 36, 38, 39,
41 and 50
United States Patent and Trademark

TRADEMARK
Office
Reg. No. Srl0/'rllT

Regisrerert June 13, x)06
PRINCIPAL REGISTER
-VfF
ADIDAS-SALOMON AG (FED REP GERMANY
AKTIENGESELLSCHAFT)
ADI-DASSLER.STRASSE 1.2 D-917M HEMOGENAURACH SKORTS, DRESSES, BIJOUSES, SHIRTS, T-SHIRTS, SLEEVELBSS TOPS, POLO SHIRTS, VESTS, JERSEYS, SWEATERS, SWEATSHIRTS, PULLOVERS,
FED REP GERMAI.IY
COATS, JACKETS, TRACK SUITS, TRAINING SU]TS. WARM-UP SIJITS, SWIMWEAR, UNDERWEAR, SOCKS, GL,OVES, SCARVES, WRISTBANDS AND BELTS; HEADGEAR, NA},IELY CAPS, HATS' VISORS, HEADBANDS; ATHLETIC FOOTWEAR
FOR: OPTICAL APPARATUS AND INSTRUMENTS, NAMELY, EYEGLASSES AND SUNGLAS-
sEs,IN
CLASS 9 (U.S. CLS. 21,23,26,36 AND 38).
AND LEISURE FOOT WEAR, NAMELY
BOOTS,
FOR: HOROIJOGICAL AND CHRONOMETRIC INSTURMENTS, NAMELY, WATCHES, IN CLASS

14 (U.S. CLS.
2,27, 28 AND 50).
SANDALS, SPECIFIC PURPOSE ATHLETIC SHOES AND GENERAL PURPOSE SPORTS SHOES, IN CLASS 2s (rJ.S. Ct S.22 AND 39). PRIORITY DATE OF I-52W4IS CLAIMED.
FOR: LEATHER AND IMITATIONS OF LEATI{ER, AND CTOODS MADE FROM TI{ESE MATERIALS IN THE NATURE OF BAGS FOR GENERAL
AND SPORT USE, NAMELY HANDBAGS, TOTE PACKS, KNAPSACKS AND BEACH BAGS; TRUNKS; TRAVELING BAGS FOR GENERAL AND SPORT USE; LEATHER AND IMITATIONS OF LEATHER AND GOODS MADEFROM THESE
MATERIAIS, NAMELY, WALLETS, BRIEFCASES, AND KEY CASES, IN CLASS 18 (U.S. CLS. l, 2,3,22 AND 4l).
FOR: SPORTS AND LEISURE WEAR, NAil,IELY suTrs, sHoRTs, PANTS, SWEATPANTS, SKIRTS,
BAGS, WAIST PACKS, OVERNIGHT BAGS, BACK.
0835756
OWNER OF INTERNATIONAL REGISTRATION DATED 6-2s-2cf,4, E)GIRES 5-25-2014.
owNER OF U.S. REG. NOS.

AND
1,428,947.
973,161, 1,310,1/(),
sER. NO. 79{06,550, FILED 6-25-2W,
ANDREW RHIM. EXAMINING ATTORNEY
Case 3:09-cv-00661-MO
Document 1
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Page 41 of 78
Page ID#: 41
'
WORLD INTEIIECTUAL PROPERTY ORGANIZATION
Oobnb.0ee P.O. Bo( T+: (41421338grll - Facsln
34, deo
IIAI}RID AGREEMENT AND PROTOCOL

(SltEsd8rd)
(t|snh
18, CH.1211
OSFE
20
Fm!fthngnlf
T{o!trgg
CERTIFICATE OF REGISTRATION
The International Bureau of the World Intellecnral Pr,operty Organization (WPO) crtifies that the indications appearing in the present certificate conform to fte recording made in the krternationd Register of Marks mainbincd under the lvtadrid Agreement and Protocol.
G Bisson
Head
Genevq December 9,2004
Examinatiou and Registration Section International Regishations.Administration Deparfrnent
L.+.,
8367s6
Registotion date: June 25, 2O04 Date nut payment due: Jane25r20l4
adidas-Salomoa AG Adi-Dass ler-Stasse I -2 D-9 17 04 Herzogonaurach
l4
metals or soated therewith (included in this clars) jewollery, precioru stones; horological and chronometic in-
l8
25
strumnb.
Leather and imitations of leatrer, and goods made ofthesc materials (included in this class); animal skins, hides;
(Gennauy). Lcgal nawe of the lplder (Iegal entity) md place of organbatrbz.' Aktiengesellschaft, Allemagne. Nane ond adfuess Gos-
sel, RechB-
D80538 lvlflnchcn
und
23,
28
Boslc reglstratton' Germany, 03.03.200/,, 3M W 261.5D5. Data relating to priorily ufur tle Paris Cowenlion: Gerrrany, 05.012(M, 3(X 00 261.5D5.
!YF
Class ifi cation
Ukraine, Uzbekistan.
el emenls
offi gurative 5.3;25.11.
:
Dedarution of lntention to use the mth: United Kingdom, Ireland, United States of America
Language of
LIst of goods mtdsqvlces - NCL(8):
Date of rctlicatlon: W.l22W tlv internationol application: English
t ,4s of the 4th February 2003,t1p nane of Serbia od Mow Federal Repblic ofYugo tenegro is to beused
trcieodr{
Exhibit 5
Page 1 of 3
Case 3:09-cv-00661-MO
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Page ID#: 42
,
3il,
DE LA pnopnrFrE INTELLEcTUELLE
1v.20 (Sub$l
ORGANISATION MONDIALE
oh
Cl5 0425 lO.E tooo slOO O r$rlft Cod., Td. (4t?21938 9t lt TeacoFlcr: 6l.z117{0 1litl E.Urll: Inlr.9-nltl$rho.lnt Int mori hupir/wwwnmpl.lnl
ar**S*'
Arrangementde Maddd
6t hotocole de Maddd
LORENZ SEIDI,ER GOSSEL klenmayerstraBe 23
dbe uiincnen
llenagne
Notre r6f6rence z 926/35824040L Votre r6f6rence :

GenAver
le L2/Ll/2006
Enregistrements internatiouaux concern6e : voir au verso

Maclane r
Monsleur,
Nous vous infornons gue Ia oodlificatiou du nor ou Iradresee du titulatre d6crtte cl-aprs a 6t6 inscrlte regletre lnternatlonal A 1'gard des enregistrenents internationaux Euomentionn6e et Eera publi6e dane Ia {Gazette OMPI dleE rEEgueE internationalesl no 45/2OO6.
au
Non et,/ou aclreEge du titulaire : aclldas AGr Adi-Daesler-strasee I-2, 91074 Eerzogenaurachr AIIenagne
Date dfinEcription : 04/1.0/2006
Bureau international tle lrOrganieation llontliale de Ia rroprt6t Intellectuelle (OiPI)
Exhibit 5 Page 2 of 3
Case 3:09-cv-00661-MO
a.
Document 1
Filed 06/12/09
Page 43 of 78 2 Page ID#: 43 Page:
Enreglstrements lnternatlonaux conceln6s : 0L74594 (N)IDAS)' 0289053 (ATTIDAS)' 0300802 (aucun 6L6nent verbal)' 0300803 (aucun 616nent verbal), 0300804 (aucun lnent verbal), 0300805 (aucun 6L6nent verbal), 0300806 (aucun 616nent verbal), 0300807 (aucun 616nent verbal),
0332782 (AZTECA-GOLD), 0352353 (ADTDAS), 0354439 (ADTDAS), 0356430 (ADrpAN), 03s8770 (ADrDAs), 0365299 (MARKE), 0365583 ( 3-STRETFEN-TRArNrNGEAI|ZUGE) r 0356288 ( 3 RTEMEN), 0370450 (RrEMEr{)r 0371058 (ADrlTrRr), 0379405 (ADTDAS), 0379{06 (aucun 616nent verbal) 03819{4 (ADI) 038{253 ' ' (aucun 6l6rneut verbal) rfolaeEel (ADrDAs), 0386491 (aucun 616nent verbal)V0389472 (N)IDA6)' 0391592 (aucun 6l6nent verbal) 0413986 (AIIICOIIRT) r 041t[034 (aucun 616nent ' verbal)r 0414035 (aucun 6t6ment verbal)' 0414035 (aucua I6nent verbal), 0{14037 (aucun 616nent verbal)' 0{16129 (A D I-), 0426376 (aucun 616nent verbal), 0447243 (DaI' WEIJTI|ARKE MIE DEN 3 SIBEIaEN)' 0454571 (SIBATOS), 0454775 (ADfITETIE) 0469033 (ADIDAS) 0459145 (aucun 6l6nent
'
'
(ADTDAS)' 0589157 (STREEEBALIJ), 059L770 (SN{BA), 0602197 (PREDATOR) | 0604447 (RESPONSE), 0606224 STUBUT.AR), 0620578 (srREE![BArJr'), 062{709 (PREDAEOR C[IP)' 0947663 (ADTDAS)' 0527664 (aucun 6l6nent verbal) , 0629972 tFoollsCAl{) 0535755 (N)rconRT), 0645383 (ADrpRsNB), 0550597 (!mAJ(ION),' 0651566 (ADr-WEAR) , 0667288 (ADTDAS,J t 0723563 (TORSTON), 0730835 (aucun 616rnent verbal), +ff:t?l (ADIDAS), 0836756 (aucun 6l6nent verbal), 084{88I (8SREE[BAr,r,r, 087666I (aucun
6lnent verbal).
Case 3:09-cv-00661-MO
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Page ID#: 44
Exhibit 6
Page 1 of 17
Case 3:09-cv-00661-MO
Document 1
Filed 06/12/09
Page 45 of 78
Page ID#: 45
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Rrchrl Hudrr und
Robbh Wlllhmr drar
gotf'
Solt
vlrt Monrtrn
rlnd sir unprtrunnllch
Case 3:09-cv-00661-MO
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oerLook
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Case 3:09-cv-00661-MO
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SETItEMENT AGREEMENT
This Sstlment Agrcmcnt ftucinafter "Airccmeng) ie madc tbis fgttr, dey of July . 1998 by and betwcm Hqbslife Intcrurtional, IDo., a Nwada oo4nration, hsving a principal plaoe of busincss at 1800 Cutury Patk EaBt, Los Angeles, Califomii 9006?
mdits nffiriares and subridiadee (hwinrfter 'HERBALIFE') on8dida" s"188r9Drsfo- Sr. l-2,gl074llorzogonarach, Federel Rcpublic of Ciermmy and its affilintes and nrbsidiuiss (brcinaften"ADIDAS').
RECJTAT.S
A" B. C.
ADIDAS usos thoir Trefoil DsiF mark (hem{ru0er ,TRffCtIL Marll)

as
identi$ its sporb clothiqg, footwoar, asooloorio and equipment
well as coorotioproducb.
HERBALIFE nsos its Tli-Laf Dcsign marlc (hereinaftsr "IRI-LEAF Markx) to

and personal care productc.
idontif ib weight ud nutitional products; skir
HERBALIFE atd ADIDAS have filcd applicetionc for rogisuation
havc
ofjruisdi*ions tbroughout the world. In some of jurisdictione, ADIDAS 'has ftlcd eppositioa prcoeedings against HRBALffib thcsc
rcgistered their rcspcctive marks in a nurrber
applications
D.
It is the desirc of &e partios to rcsolvs any dispute betwoon thccr conccrning their
rcrpective mrrks
ud to allow for tbe simulbneoult use mrl rqgiEbation of thesc ng*s
througboutthe world.
NOW THB,EFORE, in
ooneideration
of fte
foregoing
tnd the follouring

bllows:
munrel
pmmises, covenantg end oorditions, HBRBALIFE and ADIDAS qgrce as
ADIDAS a$cca ltat it will not object to the TRI-LBAF Ma*s of HERBAUFE which ae atroady registered anlmhoo in the world.
l.
Exhibit 7
Page 1 of 3
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Page ID#: 62
ADIDAS agrccs rhef it will not pur3ue any sction' by uray of opposition procccdfu or othorwisq with respect to the iue or ragishation of the TRI-LEAF Mf,t in conncction wift 6tc namc HERBALtrE or ib dstslbutors, ud thEt it will withdrarv rny oppositions it has fild agabot any qp'plication for rogisfation of tho TRI-LEAF Mart anywhere in trc world without futthcr dolay aftor full oxeoution of this ADIDAS furtk sgfcos to orccutp LtErs of Consnt Es rlsy bo rcquested by IIBRBALIFE whse itr TREFTOIL Ma*trasbcen oited as abanto ths rcgistration oftho TRI-LBAFMsrk
IIERBAIIFE sges ftat it will not object to ard horeby conseats to the use md regisbation of the TREFOIL Mut by ADIDAS ml,whoro in tho world"
2.
3.
4.
proceeding
HERBALIFB agrEs that
it will not prrsuc my aotion, by way of oprpoeition
or othm'lag with rcspect to the use or regisfation of ths TREFOIL Mart by ADIDAS. IIERBAUFU fitrthtr igroes to orccutc Ltte'rs of Couart as may be loquestcal by ADIDAS ufrere its TRI-LBAF Ma* ha beeo cited as a bar to the regisration of tho TREFOIL
Marlc HERBAIJFE agrecs ftat it will not use and rogister its TRI-LEAF '-footwear, sportr oppuel, 8poils apsssories c equipmenl
5.
Ma*
on
6. HERBAIIFE agees thet it will us it8 TFJ-LEAF Msrk in combination md in pruimity with tho word 'TIERBALIF'E." closo
HBRBALIFE aad ADIDAS dree to avoid aoy activity whic;h might be likcly b lead to confirsion between their recpectivo rnarks. Should any indance of actral confruion
aevt6eloss oocur, the puties agrce to rrndstako uroh etcps as may bo mutually detqmincd to be
noccseary and tuasonablo to
7.
pfwent roouneflGe ofconfirsion.
8. 9,
contcmplated
This Agreememt ehall be binding on and inure to the benefit of the partis hereto
end their respective sueeossoru, traogfcroes, rssignr and legal rryresentatives.
Tho patios hereto agrcc that this AgrEmnt contains the entire understanding
bcrueen IIBRBALIFB ard ADIDAS nrgadiqg the matters covered by this Agrccocnt and
hercin" Tho parties furtlrq agrec that thir Agreemcnt suporsedes all otb undoratandfurgx ffiifico or onl, oxi*ing bctwccn thou prior b trc date hereof, No other &preoo[tstions, promiees, agreemeols or underteki"gr hcve be6 made with reepect to lhe
subject rnattcr of this Agrcomoot,
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'a
10.
unlces it i3
i!
No modificstim 6i ertenrfirrml b ftir Agrsomcmt shalt be oper:rtivc or effsotivu $dting od signed by both of the partics hercto.
Bach party hereto rgrses to oxecutc euch dooumaris as nry be nececsary to eftctuate thc tcrms of thia Agcement as nsy be requilcd by thc other party.
11.
Datod:
JuIy
l0
adtdap. $al.ouron
.1998
AG
By.
Executive Hanagers
Date&
July
HBRBALIFts INTERNATIONAL, NC,

17
r998
t+
Bxocutivb ViceProsidmt and C.O,O,
.3.
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Page ID#: 64
Suite 900 607 l4th st., Nw Washington DC 20005-2018 1202508 5800 f202 508 5858 www.KilpatrickStockton.com
Attorneys nt l,[lw
direct dial 202 508 5875
Aprll24,2009
Via Fax at (310) 767-3316 and Confirmation Copv bv Mail
diectfax202 585 0033

dmarti@kilpatrickstockton.com
Cameron B. Smith, Director
Regulatory & Govt. Affairs & Intellectual Property Herbalife International 990 W. l90th st., suite 650 Torrance. CA 90502
Re:
adidas v. Herbalife
Dear Mr. Smith:
We are intellectual property counsel to adidas. It is our understanding that Aline Olie from adidas has been in communication with you since at least early February in an attempt to amicably resolve a matter of great, and growing, concern, namely Herbalife's use and registration of a trileaf logo design in connection with goods in International classes 25 and 28. Since it appears that Herbalife has chosen to disregard a number of follow-up communications, and has otherwise gone silent since March 3,2009, this matter has been forwarded to our attention.
Without repeating all of the points that Ms. Olie raised with you, Paragraph 5 of the Settlement Agreement dated July 10, 1998 (the "Agreement") expressly prohibits Herbalife from any use or registration of the trileaf logo design in connection with, among other goods, sports apparel, accessories and equipment. A copy of the Agreement is enclosed as Attachment A for your ease of reference. Herbalife is in on-going material breach of this and other provisions of the Agreement.
For example, as part of Herbalife's sponsorship of the LA Galaxy professional soccer team, the tri-leaf logo design is being used on sports jerseys. Herbalife prominently includes a "Get Your Official LA Galaxy Jersey" link on its home page, directing consumers to purchase sports apparel that features the tri-leaf design. It is not the sponsorship itself but the use of the tri-leaf design on sports apparel that is an obvious breach of the Agreement.
Herbalife's expansion into the sponsorship of other sporting events and athletes ) has led to additional violations of Paragraph 5 to the extent the trius2008 649183.1
AIIATA
AI'GUSTA C}|ARLOfIE LOI{DON NEII'YORI( RAEIGH 8TOCrc{
Tfl
WASHTGTOT{
TUil!'TOI{A.ET
Exhibit 8
Page 1 of 15
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Cameron B. Smith, Director Regulatory & Gorrt. Affairs & Intellectual Property
Herbalife International
April24,2009
Page2 of 2
leaf design is placed on sports apparel and equipment, as well as a violation of Paragraph requiring Herbalife to "avoid any activity which might be likely to lead to confusion[.]"
adidas has provided Herbalife with a generous draft agreement, which would remove any liability for these and other violations, while preserving Herbalife's core business. A copy of the draft settlement agreement is enclosed as Attachment B for your ease of reference. To be clear, nothing in the draft agreement prohibits Herbalife from its continued sponsorship of sports teams or athletes, but it must do so (after 2011) without the confusingly similar tri-leaf design.
Given the seriousness of this matter, and Herbalife's unwarranted refusal to cease the complained of behavior to date, we renew our request that Herbalife agree, without further delay, to the terms and conditions contained in attached agreement. To avoid further action on this matter, we must demand Herbalife's prompt and unequivocal response by In the event that we do not receive such response, we will take such actions as are necessary to uphold the Agreement and preserve adidas's valuable trademark interests.
@.
Nothing contained in this letter, nor any act or omission to act by adidas or its related companies, is intended or should be deemed to be a waiver, abridgement, alteration, modifrcation, or reduction of any rights or remedies that adidas or its related companies may have in regard to this matter; all such rights and remedies, whether at law or in equity, are
expressly reserved.
Sincerely,
By: Daniel H. Marti

Enclosures
cc:
Aline Olie (adidas) Bill Brewster (Kilpatrick Stockton LLP) Charlie Henn (Kilpatrick Stockton LLP)
us2008 649183.1
ANANTA AI.,GUsTA CIuRLO|IIE Lq{DON I{EUVYORI( RATEIGH STOCXIOI.T
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ATTACHMENTA
Case 3:09-cv-00661-MO
.b'
. ; ''t '
.
Document 1
Filed 06/12/09
Page 67 of 78
Page ID#: 67
SETIT"PMENT AGREEMDNT This Sstl@ent Agrcement ftcoinaftor ,rAgrcomcnf) is uradc this roth,,_ day of July . 1998 by and bstwcoo Hffbelife Interrnationat, Inc., a Nwada colporation, having a prircipal place of businoe at 1t00 Cntry Park East, Los and its arfiliates and zubeidiados (hereineftc',HERBALIFE"1 *Eut
l-2,9lO74llozoguaurach, Fedcrel Rcpublio of Ciermmy and its affilietee and nrbsidiuies (horeinrfter*ADDAS').
REC|TALS
AB. C.
ADIDAS usos thclr Trefoil Design
identi$ ite ryorts olorthing, footwar, aaoossoris
(herdrufter "TREFOIL Marlf) to and equipmeert al well as coonotioproducb.

(hcreinaftm 'TRI-LE^AF
care products.
mrk
HmBALtrFE ttss its
lli-Laf Desip ns*
Ma*") to
idontiff ib weight end nutitional pmducts; skin and personal
HERBALIFE ard ADIDAS hsve filcd applications for rogisbation
hevc
sorc of 'has fflcd tlrese iurisdictione, ADIDAS op'poeition prccoodings agdnst HmBALtrBb
rcgistercd theirrespective marke in a nurnber ofjruiedictions tlrroughout the wortd" In applications.
D.
reepective
It is the deBirc of the putios to resolve any dispute betwcen thcor concerning ffreir
marh
ud to allow for tbo simultaneoult use md rqgistation of thesc nn*s
throughoutthe world.
NOW' THEREFORBT in oonridsation of the forpgping and the following mmral

pmnises, oovensnb and conditions, HERBALIFE and ADIDAS Egrpe as follows:
ADIDAS egrccs ltat it will not object to the TRI-LEAF Maltl of HRBALIFB which arc already rqgistFed mywhare in thc wortd.
l.
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ADIDAS agrccs rhar it will not purEue any eotion, by way of opposition proceeding or o&orwisq with rmpect to the irse or regirhetion of the IRI-LEAF Mf,t in oonnoction wift ftc nanc HERBALIFE or iU dshibutors, md ttrEt it will withdrur rny oppooitions it has filcd agairut any application for rcgistation of tho TRI-LEAF Mart anyufuere in he world without futthor dolay aftor fuU exeoution of this AgFecment ADIDAS futbcr sgtroos to orccuto L,tte$ of Consont as rnly be requested by IIERBALIFE whsro its TREFTOIL lvfart trss bcer oited as a barto tho rogisEation offte III-LEAF Mnt,
frat it will not object to ad hcrr$y consGnts to the usc srd regishrtion of the fiEFOIL Markby ADIDAS anywhonr in the world"
2.
3.
HERBAIIFE
agroes
HERBALIFE agrees thst it will not pursuo my aotiorl by way of oppocition proceeding or otrm'ieq with rcryeot to the use or registsation of ths TRffOIL b{ark by ADIDAS. HBR.BAIIFE ftuthcr agrccs to cxcouto ltar6 of Congart as mny be reque,stod by ADIDAS ufiere its TRI-IJAF Ma* has beeo oited as a bar to the registr*ion oftho TREFOIL
Marls
4.
5. 6.
Hffi,BAIJFE agrecs trat lt will not use end register its TRI-LBAF Ma* on
'-footwear, sports appalol, sporb aoooesories
u equipmenl
HEBBALIFE agrees that it will use ite IRI-LEAF Mark in combination md iD cloro pruimity with the word'IIERBALIFE." HERBALIFE snd ADIDAS 8drce to avoid any activity which mieht bo likcly to lead to confusion bstween tteir respectivo mar*s. Should any instance of actral confruion
nerrcrftsless oocur, the parties agrco to undstak srrolr stcps as may bo uutually determinod to be noccssaryand reasonablo to ptlvent recuntnce ofconfirsion.
7.
8. 9.
This Ageemert ehall be binding on and inue to the beueft of the pafties hersto
and their rcqpotive suocesfom, bzogfceoes,
rlgigrF and legal rryresentatives.
Thc putios hereto agrcc that this Agrpmont aortains the entire understanding betrvom HBRBALIFB and ADIDAS nrgading ths mattcs eovercd by this Agrccocnr and contcmpleted herein Tho puties fwtlrq agrec that this Agreemcnt ruporsades all otb
undcrotandings,
rcpresontatioDs,
cdsm or onl, cxistirg
hereof, No otber promisesr agremeots or undertrkings hrye bom made with reupeot to the
bctwcon tbom prion
3hc date
subjoct rnauer of this Agecmcot.
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'I
t No modification or arrnftrot b fis Agfccmemt ehall be operrtivc or eftotirre unlcse it i0 in $dfry md sigued by botb of the padics bercto.
10.
ll. Bach party hereto agrues b oreculo euch docunonts as msy be nececsary to eftctuale thc tcmrs of this Agrcement as nay be requircd by thc otherparty.
adLdag.$elonon
Dabd:
AG
JuIy l0
. lggg
Date&
July
HERBALIFB IIfTER}IATIONAI" INC,

17 r99E
ExeoutivE
Vioekosidmt and C.O,O.
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ATTACHMENT B
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Page ID#: 71
DRAFT
AGREEMENT
THIS AGREEMENT is made and entered into this day of ,2009 (the "Effective Date"), by and between adidas AG, on behalf of itself and its affiliates, including adidas International Marketing B.V. (collectively, "adidas") on the one hand, and Herbalife International, Inc., on behalf of itself and its affiliates, including but not limited to all of its subsidiary companies ("Herbalife") on the other hand. Herbalife and adidas collectively are referred to herein as the "Parties." WHEREAS, adidas extensively has used and promoted a three leaf trade mark known as the trefoil, in connection with various products including but not limited to clothing, footwear, headgear, bags, sports equipment, cosmetic products, eyewear and watches, and is the owner of numerous valid and subsisting trade mark registrations covering the mark. Set out in Exhibit I to this Agreement are representations of the trefoil trade mark (collectively, the "Trefoil Mark"); WHEREAS, Herbalife extensively has used and promoted a three leaf trade mark in connection with various products including weight, nutritional, skin and personal care products, and multi-level marketing services and opportunities, and is the owner of valid and subsisting trade mark registrations covering the mark. Set out in Exhibit 2 to this Agreement is an example of the Herbalife three leaf trade mark (the "Herbalife Tri-leaf Mark"); WHEREAS, adidas has filed opposition procedures against one or more applications to register the Herbalife Tri-leaf Mark in the name of Herbalife, as listed in Exhibit 3 (the "Opposition Procedures"); WHEREAS, on July 10, 1998, the Parties entered into an Agreement concerning the coexistence of the Trefoil Mark and the Herbalife Tri-leaf Mark (the "l998 Agreement"); WHEREAS, the Parties desire to terminate the 1998 Agreement, and enter into a new Agreement concerning the use and registration of the Trefoil Mark and the Herbalife Tri-leaf Mark; NOW, THEREFORE, for good and valuable consideration the sufficiency of which is hereby acknowledged, the Parties agree as follows:
l.
Co-Existence.
1.1
The Parties agree to the co-existence of the Trefoil Mark and Herbalife Tri-leaf Mark, whereby Herbalife shall own registrations and make use of the Tri-Leaf Mark for dietetic, weight control, nutritional, skin and personal care products, in International classes 3,5,29,30 or 32 and whereby adidas shall own registrations and make use of its Trefoil Mark for clothing, footwear, headgear in International class 25, bags in International class 18, sports equipment in International class 28, cosmetic products in International class 3, eyewear in International class 9 and watches in international class 14. This co-existence is conditional upon the Parties' compliance with the terms of this Agreement.
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1.2
2.
The Parties hereby terminate the 1998 Agreement as of the Effective Date, after which date it shall have no further force or effect.
Avoidance of Confusion.
2.1
Undertakings by adidas.
2.I.1
adidas will not object to the registrations of the Herbalife Tri-leaf Mark in International classes 3, 5,29,30 and 32 whether standalone or as a composite with anything else, which are already registered anywhere in the world at the Effective Date
2.I.2 Within thirty (30) calendar days of the Effective Date, adidas will instruct
its trademark agents to withdraw the Opposition Procedures, on the basis that each Party shall bear its own costs of the Opposition Procedures, and of their withdrawal.
2.I.3
adidas will not file oppositions against pending or new applications by Herbalife to register the Herbalife TriJeaf Mark whether standalone or as a composite mark with anything else (e.g. the word HERBALIFE) covering (a) goods and/or services in International classes 3,5,29,30 or 32; or (b) covering goods in International class 18, provided that the specification of goods does not include any luggage or bags other than bags for use in connection with weight and nutritional products or with skin and personal care products. Adidas reserves the right to oppose any such pending or new application, however, if the Tri-leaf is filed as a composite with another word or device which adidas considers to be confusingly similar to any of its trademarks other than the Trefoil Mark.
2.2
Undertakings by Herbalife.
2.2.1 Herbalife will not object to the registrations of the Trefoil Mark which are
already registered anywhere in the world at the Effective Date.
2.2.2 Herbalife will not register or apply to register anywhere in the world the Herbalife Tri-Leaf Mark whether standalone or as a composite mark with anything else (e.g. the word HERBALIFE) for any goods in International classes 25 or 28. Herbalife will withdraw all applications, and cancel all
registrations anywhere in the world which do not comply with the foregoing provision of Clause 2.2.2.
2.2.3 Herbalife will
not use the Herbalife Tri-Leaf Mark whether standalone or as with anything else (e.g. the word HERBALIFE) on or in relation to any goods in International classes 25 or 28, with the exception of apparel products manufactured by or for Herbalife which are either:
a composite mark
a.
Only for promotional purposes where the total quantity per africle design produced is no more than 100 items, or
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b. Are sold only to Herbalife
independent distributors through non-retail channels for their own use, and have the HERBALIFE word on such apparel, either in close proximity or at least clearly in the same field of vision of the Herbalife Tri-Leaf Mark on such apparel.
c.
L.A. Galaxy shirts in the design shown in Exhibit 4, until the end of the
201 1 season, but not thereafter.
d. Jerseys of teams or athletes sponsored by Herbalife,
where retail sales of such jerseys is less than 1000 units worldwide, until the end of the 2011 season, but not thereafter.
For the avoidance of doubt, and except in the case of the LA Galaxy shirts and jerseys of teams and athletes referred to in paragraphs c and d above, it is understood between the Parties that Herbalife will not use or permit other third parties the use of the Herbalife Tri-Leaf Mark whether standalone or in combination with anything else (e.g. the word HERBALIFE) on or in relation to any goods in International class 25 or 28 whose purpose is to promote the Herbalife company and/or its products or services and where the products in International class 25 or 28 are offered for sale in commercial quantities and/or in normal retail channels anywhere in the world.
2.2.4
Herbalife will not use or apply to register the Herbalife Tri-Leaf Mark whether standalone or in combination with anything else (e.g. the word HERBALIFE) for any goods in Int. class 18, except for 'bags for use in connection with weight and nutritional products or with skin and personal care products'. Herbalife will not use or apply to register the Herbalife Tri-Leaf Mark without a circle around it.
any design including stripes or any other mark or design on sports apparel which may suggest to consumers that there is a link or connection between Herbalife's products
and adidas.
2.2.5
2.2.6 Herbalife will not use or apply to register
2.2.7
Herbalife will not use any adidas products or images of adidas products in any advertising or promotion for any of its products without the prior written approval of adidas.
3.
Confidentiality. The Parties will keep this Agreement strictly confidential, and will not disclose its existence or terms to anyone, except professional advisors or as required in any tax filing or to comply with legal process or a court order. Neither the Parties nor their counsel shall seek to publicize, or comment to the press concerning, this Agreement. Notwithstanding the foregoing, the Parties agree that this Agreement may be disclosed to any third party (or its attorneys) in connection with the enforcement against such third party of rights in the Trefoil Mark or the Herbalife Tri-leaf Mark in
Exhibit 8
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any country of the world. The Parties further agree that this Agreement may be disclosed in the context of litigation, provided that the disclosing Party exercises reasonable efforts to ensure that any such disclosure is made in a manner that will limit public disclosure (e.g., pursuant to a protective order).
4.
Warranties and Representations. The Parties acknowledge that no person or any other entity has made any promise, representation, or warranty whatsoever, expressed, implied or statutory, not contained herein, conceming the subject matter hereof, to induce the execution of this instrument, and the Parties acknowledge that they have executed this instrument without reliance on any promise, representation, or warranty not contained herein. The Parties have read and understand all terms and conditions of this Agreement.
Force and Effect of Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties and each of their respective directors, offrcers, agents, employees, stockholders, representatives, attorneys, successors and assigns.
5.
6.
Severability. The invalidity or unenforceability of any paragraph or provision of this Agreement shall not affect the validity or enforceability of the remainder of this Agreement, or the remainder of any paragraph or provision. This Agreement shall be construed in all respects as if any invalid or unenforceable paragraph or provision were omitted. Without limiting the generality of the foregoing, if any court, agency, tribunal, or other authority in one country declares this Agreement or any part of it to be invalid or unenforceable, that act shall have no effect on the validify and enforceability of this Agreement in any other country. Governing Law. This Agreement shall be governed by and construed in accordance with English law . All disputes arising out of this Agreement, if not otherwise resolved, shall exclusively be submitted to the High Court in London. Waiver. The waiver of any breach of any term of this Agreement by any Party shall not be deemed a waiver of any subsequent or prior breach. No Party shall be deemed to have waived any breach of any term of this Agreement, except as set forth in writing. Execution of Agreement. The undersigned individuals hereby warrant and represent that they have full authority to execute and perform this Agreement on behalf of the party for which they have signed. This Agreement may be executed in counterparts, all of which, when taken together, shall constitute one agreement with the same force and effect as if all signatures had been entered on one document. Entire Agreement and Modification. This Agreement represents the entire agreement between the Parties and supersedes all prior or contemporaneous agreements (including the 1998 Agreement). This Agreement may not be altered, amended or modified, except in a writing signed by all Parties.
7.
8.
9.
10.
Exhibit 8
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Dated:
,2009
ADIDAS AG
By: Name: Tim Behean Title: General Counsel, Group Intellectual

Property
Dated:
,2009
Exhibit 8
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EXHIBIT 1: The adidas Trefoil logo
'IYF'
!Y7
Exhibit 8
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EXHIBIT 2: The Herbalife Tri-leaf Mark
Exhibit 8
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EXHIBIT 3: Opposition procedures
Exhibit 8
Page t5 of 15

Adidas Herbalife Complaint

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Case 3:09-cv-00661-MO

CV'09 "N6. 61 ..... MO

HERBALIFE INTERNATIONAL, INC., Defendant.

This is an action at law and in equity for breach of contract, trademark

below, in connection with sports apparel, accessories and equipment:

10, 1998, in which Defendant agreed that

"it will not use and register its TRI-LEAF Mark on

JURISDICTION AND VENUE

This District is a proper venue pursuant to 28 U.S.C. $ 1391(b)(2) because a

Perkins Coie r,lp

2r t84-001 6|LECALI 637 I 859.

merchandise, including goods bearing the distinctive Trefoil Mark.

On information and belief, Defendant Herbalife International, Inc. is a corporation

FACTS COMMON TO ALL CLAIMS FOR RELIBF

it refers to as the "Trefoil" symbol on its athletic shoes and apparel,

Trefoil Mark are attached

1120 N.W. Couch Street, Tenth Floor

21184-007 6lt_EGALl 637 l 859.

Portland, OR 97209-412E Phone: 503,7212000

adidas is the owner of a federal trademark registration, Reg.No. 973,161, issued

jump suits, boots, shoes, slippers, " and "shoelaces."

Perkins Coie lr,p

N.W, Couch Street, Tenth Floor

A copy of the Certificate of Registration for this mark is attached

adidas is also the owner of an International Trademark Registration, Reg.

adidas is a world-famous brand in the apparel, sports equipment, and footwear

I120 N.W. Couch Street, Tenth Floor

adidas's Trefoil Mark is a well-known and famous symbol of adidas's market

Trefoil Mark has continued to grow. The Trefoil Mark is now

athlete fashion choices by, for example, Madonna,

Lil' Kim, Geri Halliwell,

Missy Elliot, Dido,

Such successful marketing campaigns, sponsorships, celebrity endorsements, and

1120 N.W. Couch Street, Tenth Floor I

Portland, OR 97 209-4128 Phone: 503.727.2000

goodwill that is symbolized by the Trefoil Mark.

DEFENDANT'S UNLAWFUL ACTIVITIES

Mark"), in connection with nutritional supplements and other health-related products.

In the mid-1990s, Defendant sought to register the Tri-Leaf Mark in a number of

1120 N.W. Couch Street, Tenth Floor

A true and correct copy of the Agreement is attached

Tri-Leaf Mark to be used directly on such items as sports apparel,

sports accessories and./or equipment.

Put Your Goals in Motion

14 u /! r !!! frau rq fti,iri \y gE sr Oa

Codd You. Xcrbdde Dd.bdo.

84-0076/LEGALl 637 1 859. I

O':fuq!d!!r!a0udl Opjqj-l$qq4loffi O lElelte arcn-nr cdd od.Ua

"A h.althy, active

As a result of Defendant's sponsorship activities, the Tri-Leaf Mark can now be

found on a variety of sports apparel, sports accessories and/or equipment, including in

proximity with the term "HERBALIFE."

1120 N.W. Couch Street, Tenth Floor

Portland. OR 97 209-4128 Phone: 503.727.2000

the ADIDAS word mark).

Defendant's use of a confusingly similar imitation of adidas's Trefoil Mark is

likely to cause confusion, or to cause mistake, or to deceive

The likelihood of confusion, mistake, and deception engendered by Defendant's

Tri-lraf Mark in connection with sports

confusion in the marketplace.

For example, Defendant filed applications to register the Tri-Leaf Mark, as a

design element standing alone, in a number of countries, including in Australia (Application

1120 N.W. Couch Street, Tenth Floor